Effective Date: December 20, 2021
BLOCKIT SOFTWARE SERVICEs TERMS & CONDITIONS
This SOFTWARE SERVICES TERMS & CONDITIONS (this “Agreement”) concerns the Software (as defined below) and is entered into by and between Blockit Now, Inc., a Delaware corporation (“Blockit”), and the customer (including any person or entity helping the customer visit and access the Software, “Customer”). Each of Blockit and Customer may be referred to herein, individually, as a “Party” and, collectively, as the “Parties.”
This Agreement supplements any additional online terms acknowledged by Customer or any separate written agreement executed by the Parties and sets forth the supplemental terms and conditions under which Blockit will provide access to certain proprietary technology to the Customer accessing the Software. This Agreement sets forth the terms and conditions under which Customer may use Blockit’s limited free module software (the “Software”). Customer cannot use the Software until Customer has carefully read and agreed to this Agreement by clicking “I Accept”, and the date that Customer so agrees to this Agreement shall be the “Effective Date” of this Agreement. If Customer disagrees with the terms and conditions of this Agreement, Customer cannot use the Software. Furthermore, by accessing, loading, or otherwise using the Software, which may include related materials and documentation, or any portion thereof, Customer agrees to be bound by all of the terms of this Agreement.
WHEREAS, Blockit has developed and owns certain computerized databases and applications for the purpose of allowing our customers (including, without limitation, patients and healthcare providers) to schedule appointments and coordinate complex care episodes in a more efficient manner; and
WHEREAS, Customer desires to engage with Blockit in order to assist Customer in improving patient engagement, care coordination and outcomes (including, without limitation, by means of the use of the Software), and Blockit desires to accept such engagement, in each case in accordance with the terms and conditions herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the covenants contained herein, and for other good and valuable consideration, the Parties agree as follows:
a. “Blockit Agreements” shall collectively mean this Agreement, the Supporting Material (as defined below), and any written amendments signed by both Parties.
b. “Authorized Users” shall mean Customer and Customer’s employees and independent contractors working under Customer’s direction who: (i) are not Competitors (as defined below) of Blockit, (ii) are bound by terms at least as restrictive as this Agreement, and (iii) are specifically authorized by Customer to access the Service. Customer shall remain responsible for all actions taken by the Authorized Users relating to their use of the Service and may be required to identify Authorized Users at Blockit’s request. Independent Contractors that are competitors of Blockit must execute a non-disclosure directly with Blockit prior to accessing the Software and/or the Service.
c. “Competitor” shall mean a person or entity other than Blockit that provides services or applications in the field of scheduling appointments for patients or healthcare providers.
d. “Display Devices” shall mean authorized display devices used to access and display the Service and the Software as identified in the Supporting Material.
e. “Office” shall mean the address(es) of Customer’s office(s) in which a Display Device is located.
f. “Service” shall mean Blockit’s information applications and related services subscribed to by Customer as outlined in Exhibit A.
g. “Service Start Date” shall mean the date from which Customer receives the applicable Service.
h. “Software” shall have the meaning set forth in the preamble of this Agreement.
i. “Supporting Material” shall include, without limitation, the following documents and agreements mutually agreed upon by the Parties: (i) Statements of Work, Fee Schedules, or Order Forms, (ii) online, printed, or provided data sheets, product lists, hardware, or software specifications, and (iii) standard or negotiated service descriptions, published warranties and service level agreements, or any other similar documents or agreements.
j. “Term” shall mean the period identified in the Supporting Material, or any renewal term, as applicable and as determined in accordance with Section 12 of this Agreement.
The Service and the Software are only offered to users eighteen (18) years of age or older, or otherwise the age of majority in their respective jurisdictions, and who have accepted this Agreement. By visiting, accessing, registering with, and using the Service and the Software, Customer represents and warrants to Blockit that Customer meets these eligibility requirements. Customer further agrees to comply with all applicable laws for visiting, accessing, registering with, and using the Service and the Software, and Customer agrees to only use the Service and the Software for lawful purposes.
3. License to Receive the Service.
a. License Grant. During the Term, Blockit hereby grants the Customer and its Authorized Users identified on the Supporting Material a limited, non-exclusive, revocable, and non-transferable license, without right of sublicense, to access and display internally on Customer’s Display Devices within the United States, the Service and the Software, subject to the terms and conditions of the Blockit Agreements (the “License”). All rights in the Service and the Software not expressly granted under the Blockit Agreements are reserved to Blockit.
b. Scope. The License is limited to the display and retrieval of the Service and the Software by Authorized Users solely on Customer’s Display Devices as set forth in the Supporting Material. The License does not extend to applications for the display or retrieval of content within the Service and the Software that are not expressly permitted in the Supporting Material. Customer shall have no right pursuant to this Agreement to distribute the Service or the Software in whole or in part over the Internet, or via email or instant messaging, or via an Intranet, personal digital assistant, wireless application protocol, short message service or radio system. Nothing in this Agreement shall obligate Blockit to provide technical customization or to continue providing access to any Service or the Software beyond the date when Blockit ceases providing such Service or the Software to its customers generally.
c. Restrictions of Use. Customer shall not edit, alter, abridge or otherwise change in any manner the content of the Service and the Software, including, without limitation, all copyright and proprietary rights notices. Customer may not, and may not permit others to:
i. Reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the Service or the Software;
ii. Modify, translate, adapt, alter, or create derivative works from the Service or the Software;
iii. Access the Service or the Software on any devices other than Customer’s Display Devices;
iv. Access the Service or the Software in order to build a competitive product or service or to benchmark with a product or service not provided by Blockit;
v. Use or access the Service or the Software in any manner that violates any third party rights or that could damage, disable, overburden, impair, or otherwise interfere with or disrupt the Service or the Software;
vi. Copy (other than one (1) permitted back-up copy), distribute, publicly display, transmit, sell, rent, lease or otherwise exploit the Service or the Software in a manner that is not expressly permitted herein; or
vii. Distribute, sublicense, rent, lease, loan or grant any third party access to or use of the Service or the Software.
For the avoidance of doubt, Customer hereby agrees that Customer shall only use the Software for the exclusive limited use of scheduling.
4. Customer Duties.
Customer agrees to participate, and to cause its clinics, outpatient centers, physicians and other providers, and Customer-owned ancillary services, to participate in the Software in accordance with the terms of this Agreement.
5. Blockit Duties.
Blockit agrees to provide the Service as described in Exhibit A and to satisfy its obligations under the Blockit Agreements.
6. Prices, Taxes, Invoices, and Payment.
The Service and the Software provided by Blockit under this Agreement shall be offered to Customer free of charge.
7. Confidential Information.
Customer, including Customer’s officers, employees, directors, managers, and affiliates, agrees not to use any Confidential Information (as defined below) disclosed to Customer by Blockit for Customer’s own use or for any purpose other than the use of Services. Customer shall not disclose or permit disclosure of any Confidential Information of Blockit to any third parties. Customer agrees to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized by Blockit to have any such information. Customer further agrees to immediately notify Blockit in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of the Confidential Information which may come to Customer’s attention. For purposes of this Agreement, the “Confidential Information” of Blockit includes (without limitation) any information, technical data or know-how (whether disclosed before or after the Effective Date of this Agreement), including, but not limited to, information relating to business and product or service plans, financial projections, customer lists, business forecasts, sales and merchandising, human resources, patents, patent applications, computer object or source code, research, inventions, processes, designs, drawings, engineering, marketing or finance to be confidential or proprietary or which information should, under the circumstances, appear to a reasonable person to be confidential or proprietary. Confidential Information does not include information, technical data or know-how which: (a) is in the possession of Customer at the time of disclosure, as shown by Customer’s files and records immediately prior to the time of disclosure; or (b) becomes part of the public knowledge or literature, not as a direct or indirect result of any improper inaction or action of Customer. Notwithstanding the above, Customer shall not have liability to Blockit with regard to any Confidential Information of Blockit which Customer can prove is disclosed with the prior written approval of Blockit, or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that Customer shall provide prompt notice of such court order or requirement to Blockit to enable Blockit to seek a protective order or otherwise prevent or restrict such disclosure. Notwithstanding anything to the contrary, Customer agrees and understands that Blockit will use aggregated and de-identified data for business purposes, including but not limited to, improving the Service, marketing, industry use cases, and commercialization.
a. Patient Information. Each Party may be provided with patient information as allowed by law and each Party agrees to maintain the confidentiality of all such patient information without limitation of time, unless specifically required to disclose such information by law. The Parties hereby agree to comply with all applicable statutes and regulations, under federal and state laws, including but not limited to the privacy and security regulations promulgated under the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”) and any other applicable statutes or regulations concerning patient privacy and data security. Furthermore, the Parties agree to abide by the Business Associate Agreement attached hereto as Exhibit B.
b. Regulatory Compliance. Customer shall comply with all applicable federal, state, or local law, rule, or regulation, including but not limited to, any conditions imposed by the FDA, the federal False Claims Act, the PhRMA Code on Interactions with Healthcare Professionals, the US Physician Payment Sunshine Act (42 U.S.C. 1320a-7h), the Department of Health and Human Services Health Information Technology for Economic and Clinical Health Act of 2009, as amended (“HITECH”), HIPAA, all state consumer privacy laws, the anti-fraud and abuse statute, and any applicable federal or state anti-kickback laws and self-referral laws.
d. De-authorized Users. Customer shall be solely responsible for immediately de-authorizing those Authorized Users who have or allegedly have violated any law or regulation involving bribery, fraud, kickbacks, moral turpitude or corruption or have been debarred, excluded or suspended from operation, license or certification, or proposed for debarment, exclusion or suspension by any government agency.
9. Customer Account.
a. Registration. In order to use the Service and the Software, Customer must create a personal user account (a “User Account”), as well as further acknowledge Customer’s acceptance of and agreement to this Agreement and those additional terms, conditions, and policies referenced herein, as Blockit may require from time to time.
b. User Account Activity and Information. Customer is responsible for all activity that occurs under Customer’s User Account, and Customer is prohibited from authorizing or allowing any third party to access or use Customer’s User Account. Accordingly, Customer should take all steps necessary to protect and keep secret Customer’s User Account details and access information. Customer should also maintain accurate, complete, and updated information in Customer’s User Account, since a failure to do so may result in Customer’s inability to access, use, and/or receive all or any part of the Service or the Software and/or Blockit’s termination of this Agreement. For security purposes, Customer agrees to immediately notify Blockit in writing if Customer suspects a third party has gained access to or is using Customer’s User Account without authorization. For the avoidance of doubt, Blockit has the unencumbered right to access and use, and to allow Blockit’s agents, employees, representatives, contractors, and vendors to access and use, the information in Customer’s User Account in order to facilitate the exercise and performance of Blockit’s rights and obligations under this Agreement, the operation of the Service and the Software, and/or any of the other rights, obligations, and services related to the subject matter of this Agreement.
10. Prohibited Activities.
Customer shall not engage in any of the following activities at any time with respect to the Service or the Software: (a) the impersonation of any person or entity; (b) any act that infringes or otherwise violates the intellectual property, privacy, or publicity rights of any person or entity (including, without limitation, the copyrights, trademarks, patents, and trade secrets held by Blockit or its licensors with respect to the Service or the Software); (c) the reproduction of the Service, the Software, or any data or content found thereon or therein, in whole or in part, or the creation of any derivative works of the foregoing (unless expressly authorized by Blockit herein); (d) the publication of any content that is objectionable or illegal (including, without limitation, content that is indecent, obscene, infringing, an invasion of privacy, defamatory, disparaging, false, deceptive, misleading, untruthful, fraudulent, threatening, or abusive); (e) the publication of a person’s or entity’s personal information or private facts without his/her/its prior written consent; (f) the publication of any machine, computer, or randomly generated content; (g) supplying or publishing any information or statements to or through the Service or the Software that is false, misleading, deceptive or incorrect; (h) any act that constitutes a commercial activity; (i) any act intended or designed to drive traffic to or boost the search rankings of third-party websites, networks, platforms, servers, or applications; (j) the systematic retrieval or copying of any information or content found on or through the Service, the Software, or any servers which may host the Service or the Software to directly or indirectly create or compile, in whole or in part, a collection, compilation, database or directory; (k) the use of any software, program, process, device, application or routine (including, by way of example only, robots, scrapers, spiders, viruses, spyware and malware) to monitor, copy, disrupt, damage, injure, interfere with or impermissibly access, in whole or in part, the Service, the Software, any servers which may host the Service or the Software, or any data or content found thereon or therein; (l) any act that involves or concerns decrypting, security bypassing or circumventing, hacking, data mining, data scraping, data harvesting, reverse engineering, decompiling, disassembling, attempting to derive source code, modifying, copying or the like in relation to the Service, the Software, or any servers which may host the Service or the Software; (m) any act that overloads, unreasonably disrupts, or unreasonably interferes with the infrastructure of the Service, the Software, or any servers which may host the Service or the Software; (n) any act that gains or attempts to gain unauthorized access to computer systems, networks, information or materials through the Service, the Software, or any servers which may host the Service or the Software; or (o) any other act about which Blockit becomes aware and believes in good faith is improper, illegal or harmful to the Service, the Software, any servers which may host the Service or the Software, any person or entity or the property of any person or entity.
11. Intellectual Property.
All intellectual property related to the Service and the Software, including all technology and advertising ideas, phrases or words, will be and remain the absolute and exclusive property of Blockit in perpetuity. Customer acknowledges that Customer does not now have, nor will have in the future, any right, title or interest of any kind or nature in such materials, or in or to any component, part, element, character or characterization thereof. Blockit shall remain the owner of all feedback, data, aggregated data, derivatives, improvements and modifications related to the Software, the Service, or any additional services performed or provided by Blockit that originate from or are otherwise requested by Customer (the “Improvements”). Customer agrees to assign and does hereby assign to Blockit all of its rights, title, and interest in and to the Improvements. Customer shall take all appropriate action and execute and deliver all documents necessary or reasonably required by Blockit as may be necessary to register, perfect, or record Blockit’s rights in or to any such Improvements.
12. Suspension and Termination.
a. Term. This Agreement shall commence upon the Effective Date and shall continue until terminated in accordance with the terms herein.
b. Termination by Blockit. Blockit may, in Blockit’s sole discretion, suspend and/or terminate Customer’s use of the Service and the Software at any time for any reason and without notice. Suspension and/or termination of Customer may include restricting access to and use of the Service and/or the Software and, subject to applicable laws, may also include the deletion of the content associated with Customer. Customer hereby agrees not to make any further use of the suspended and/or terminated Service and Software during such suspension or after termination. Blockit shall not be liable to Customer or any third party for any loss or damage that is caused by or arises from or in connection with any such suspension or termination (including, without limitation and by way of example only, refunds, lost profits, lost opportunities, monetary damages, disruption in services, loss of services, or loss of content).
c. Termination by Customer. Customer may terminate this Agreement at any time and for no reason by ceasing use of the Service and the Software.
d. Effect of Termination. If this Agreement is terminated for any reason, then all rights granted to Customer under this Agreement shall automatically and immediately revert back to Blockit, and the following shall survive in perpetuity: (i) all defined terms under this Agreement, (ii) all rights and privileges under this Agreement that were granted to and/or accrued in favor of Customer and/or any of Customer’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors, or licensees as of the date of this Agreement’s termination, (iii) all disclaimers, limitations of liability, and limitations of remedies, and (iv) all representations, warranties, covenants, certifications, releases, indemnifications, and promises made by Customer under this Agreement.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICE, THE SOFTWARE, THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED BY BLOCKIT ON AN “AS IS”, “AS AVAILABLE” BASIS, AND BLOCKIT DOES NOT MAKE ANY (AND HEREBY SPECIFICALLY DISCLAIMS ANY) REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. BLOCKIT’S SERVICE OR SUPPORT COMMITMENTS WILL NOT COVER CLAIMS RESULTING FROM:
a. improper use, site preparation, or site or environmental conditions or other non-compliance with applicable instructions;
b. Modifications or improper system maintenance or calibration not performed by blockit or authorized by blockit;
c. PLANNED OR UNPLANNED DOWNTIMES, failure or functional limitations of any non-blockit software or product impacting systems receiving blockit support or service;
d. malware (e.g. virus, worm, etc.) not introduced by blockit; or
e. abuse, negligence, accident, fire or water damage, electrical disturbance, transportation by Customer, or other causes beyond blockit’s control.
14. Limitation of Liability.
BLOCKIT’S LIABILITY TO CUSTOMER UNDER THIS AGREEMENT IS LIMITED TO THE LESSER OF (A) THE AMOUNT PAYABLE BY CUSTOMER TO BLOCKIT FOR THE RELEVANT ORDER OVER A SIX (6) MONTH PERIOD.
NEITHER CUSTOMER NOR BLOCKIT WILL BE LIABLE FOR LOST REVENUES OR PROFITS, DOWNTIME COSTS, LOSS OR DAMAGE TO DATA OR INDIRECT, SPECIAL OR CONSEQUENTIAL COSTS OR DAMAGES.
THIS PROVISION DOES NOT LIMIT EITHER PARTY’S LIABILITY FOR: UNAUTHORIZED USE OF INTELLECTUAL PROPERTY, DEATH OR BODILY INJURY CAUSED BY ITS NEGLIGENCE, ACTS OF FRAUD, WILLFUL REPUDIATION OF THE AGREEMENT, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
15. Limitation of Remedies.
If Blockit breaches or otherwise violates this Agreement, then in no event shall Customer be entitled to recover any special, incidental, consequential, speculative, or punitive damages arising out of or in relation to such breach or other violation, even if Blockit has been notified of the possibility of such damages.
16. General Release of Claims.
Customer hereby releases and holds harmless Blockit and Blockit’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors, and licensees (collectively, “Blockit Persons”) from and against all claims that Customer may have against them for infringement, violations of rights of privacy or publicity, defamation, disparagement, personal injury, property damage, negligence, and/or any other legal theory arising from or in connection with the Blockit Service and Software and/or the rights and privileges granted or conveyed by Customer under this Agreement. Further, Customer hereby waives Customer’s right to (and in no event shall Customer seek to) enjoin Blockit or any Blockit Persons, and Customer further waives Customer’s right to exercise any of the rights or privileges granted or conveyed by Customer under this Agreement.
Customer also hereby waives any rights Customer may have under Section 1542 of the California Civil Code or any other statute or common law principle of similar effect, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
customer hereby agrees to indemnify, release, and hold harmless blockit and any blockit persons (together, for the purposes of this section 17, “indemnitees”) from and against all liabilities, claims, suits, demands, actions, judgments, losses, damages, fines, penalties, and expenses (including costs and reasonable outside attorneys’ fees) incurred by such indemnitees, or asserted against such indemnitees by third parties, arising out of or in connection with (a) customer’s acts, errors, or omissions, (b) customer’s use of the service or the software in any manner contrary to the terms and conditions of this agreement, (c) customer’s violation of the rights of, or other injury to, any third party, and/or (d) customer’s breach of all or any part of this agreement.
18. Electronic Communications.
a. Express Consent. Customer hereby expressly consents to Blockit sending or otherwise communicating with Customer for any purpose (including, without limitation, for advertising, telemarketing, or other marketing or promotional purposes, or for sending or notifying Customer about special offers, updates, newsletters or other informational purposes) via any electronic means or forms as Blockit deems appropriate in its sole discretion, whether through the Service, through the Software, through Customer’s User Account, by personal communication, by e-mail, by automatic telephone dialing system, by artificial or prerecorded voice, by online social media, by text message (e.g., short message service a/k/a SMS, and multimedia messaging service a/k/a MMS) or by other electronic media means or forms. By giving such consent, Customer agrees that no such communication shall violate the Telephone Consumer Protection Act, the CAN-SPAM Act, or any other applicable laws, rules, or regulations. Voice, message, and data fees, rates, charges, and taxes may apply to Customer, and Customer is responsible for payment of the same.
b. E-mail Opt Out. Customer may opt-out of receiving any e-mails as described in Section 18(a) above any time by following the opt-out instructions in any such e-mails Customer has received and would like to opt-out of. Customer may also opt-out of receiving certain e-mails by managing Customer’s electronic communication preferences through Customer’s User Account. Customer acknowledges that opting out of receiving any such communications may impact Customer’s receipt, the success, and/or the performance of all or any part of the Service, the Software, Customer’s User Account, and/or Customer’s ability to receive certain messages and/or notifications from Blockit.
c. Text Message Opt Out. Customer may opt-out of receiving any text messages (e.g., short message service a/k/a SMS, and multimedia messaging service a/k/a MMS) as described in Section 18(a) above at any time by following the opt-out instructions in any such text messages Customer has received and would like to opt-out of. Customer may also opt-out of receiving certain text messages by managing Customer’s electronic communication preferences through Customer’s User Account. Customer acknowledges that opting out of receiving any such communications may impact Customer’s receipt, the success, and/or the performance of all or any part of the Service, the Software, Customer’s User Account, and/or Customer’s ability to receive certain messages and/or notifications from Blockit.
d. Other Opt Outs. Customer may opt-out of receiving any communications besides those described in Sections 18(b) and 18(c) above at any time by providing Company with an e-mail to email@example.com, with a subject line of “Opt-Out of Communications,” a list in the body of the e-mail that identifies the specific type of communication(s) that is the subject of Customer’s opt-out request (e.g., communications by automatic telephone dialing system), and a list in the body of the e-mail that identifies the telephone number(s) or e-mail address(es) (as applicable depending on the specific type of communication(s) that is the subject of Customer’s opt-out request) belonging to Customer which is the subject of Customer’s opt-out request. Customer may also opt-out of receiving certain of those communications by managing Customer’s electronic communication preferences through Customer’s User Account. Further, for certain telephone communications (e.g., communications by automatic telephone dialing system), Customer may opt-out by using any other reasonable method delivered to the appropriate department of Blockit. Customer acknowledges that opting out of receiving any of those communications may impact Customer’s receipt, the success, and/or the performance of all or any part of the Service, the Software, Customer’s User Account, and/or Customer’s ability to receive certain messages and/or notifications from Blockit.
19. Independent Contractors.
Each Party warrants and represents that in performing such Party’s obligations under this Agreement, such Party does so as an independent contractor and, without limiting the foregoing, each Party assumes exclusive responsibility to file any tax returns or reports necessary in connection therewith. Neither Party has the right or authority to assume or to create any obligation or responsibility on behalf of the other Party. Nothing contained herein shall be construed as implying a joint venture, agency, consortium or partnership relationship between Blockit and Customer.
20. Use of a Party’s Name.
Customer agrees Blockit may use the Customer’s name, logo, or trademark for Blockit’s business purposes, such as Blockit’s website and published client list. All press releases or other public communications of any nature whatsoever relating to the transactions contemplated hereby, and the method of the release for publication thereof, shall be subject to the prior consent of the Parties, and consent shall not be unreasonably withheld or delayed longer than three (3) business days after the receipt of written notice.
21. Right to Enter Agreement.
Customer warrants and represents that it has full power and authority to enter into this Agreement and to perform all of the obligations under this Agreement without violating the legal or equitable rights of any third party. Customer represents that Customer has timely provided all notices to and obtained all consents from any third person that may be required by law or any contract to which Customer is a party in order to enter into this Agreement and perform the services contemplated hereunder.
All notices and demands of any kind or nature which any Party to this Agreement may be required or may desire to serve upon the other Party in connection with this Agreement shall be in writing, and may be served personally, by registered or certified United States mail, by electronic transmission or by overnight courier (e.g., Federal Express or DHL) to the following addresses:
If to Customer, all notices will be sent to the address provided by Customer or the address on file by Blockit Now, Inc.
If to Blockit: Blockit Now, Inc.
550 N Central Expy #577
McKinney, TX 75070
Attention: Sean Workman
Service of such notice or demand so made shall be deemed complete on the day of actual delivery. Without limiting the generality of the foregoing, if notice is given by electronic transmission, such notice shall be deemed to be provided upon confirmation of the receipt of the transmission. Any Party hereto may, from time to time, by notice in writing served upon the other Party as aforesaid, designate a different mailing address or a different person to which all further notices or demands shall thereafter be addressed.
The headings of the various paragraphs hereof are intended solely for the convenience of reference and are not intended for any purpose whatsoever to explain, modify or place any construction upon any of the provisions of this Agreement.
The rights and obligations of this Agreement may not be assigned by either Party without the prior written consent of the other Party, and such consent shall not be unreasonably delayed or withheld. Notwithstanding the foregoing, this Agreement may be assigned without obtaining prior consent to any corporation or other entity of any kind succeeding to the business of Blockit in connection with the merger, consolidation, sale or transfer of any stock or all or substantially all of the assets and business of a Blockit business or services to such successor or with a corporate reorganization involving Blockit.
This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed one and the same instrument. In order to be effective, any amendments to this Agreement must be in writing and signed by all Parties as required above.
A waiver by any Party to this Agreement of any of its terms or conditions in any one instance shall not be deemed or construed to be a general waiver of such term or condition or a waiver of any subsequent breach.
27. Governing Law.
This Agreement shall be enforced in accordance with the state and federal laws arising out of the State of Texas, excluding rules as to choice and conflict of law.
28. Dispute Resolution.
If Customer is dissatisfied with any products or services purchased under these terms and disagrees with Blockit’s proposed resolution to such dissatisfaction, both Parties agree to promptly escalate the issue to a Vice President (or equivalent executive) in the respective organizations for an amicable resolution without prejudice to the right to later seek a legal remedy.
29. Force Majeure.
Any failure or delay by Blockit in the performance of its obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or Internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States or any nation where the obligations under this Agreement are to be executed, strikes, supplier and third party failure, lockouts, or labor difficulties, or any similar cause beyond the reasonable control of Blockit.
All provisions of this Agreement are severable. If any provision or portion hereof is determined to be unenforceable by a court of competent jurisdiction, then the rest of this Agreement shall remain in full effect, provided that its general purposes remain reasonably capable of being effected.
31. Entire Agreement.
This Agreement shall supersede any previous contracts between the Parties with respect to the subject matter hereof and constitute the entire agreement between the Parties with respect to the subject matter hereof. Both Parties acknowledge that any statements or documents not specifically referenced and made a part of this Agreement shall not have any effectiveness. This Agreement may only be amended by a written instrument signed by the Parties hereto.
32. Electronic Copies.
Copies transmitted electronically such as by facsimile or portable document format (pdf) shall be considered the equivalent to originals as shall signatures applied to such documents and transmitted electronically. The Parties agree that such signed electronic copies shall be binding upon them the same as though they were hardcopies with original signatures.
Exhibit A: Blockit Services
1. Service Availability. Blockit’s goal is to provide Software availability twenty-four (24) hours per day, seven (7) days per week (referred to as “24×7 Availability”), except during times of scheduled updates. However, the Parties recognize that 24×7 Availability is only a goal, and Blockit cannot represent or guarantee that such goal can be achieved. These response time goals apply only to public production servers (i.e., web servers, application servers, and database servers). Blockit shall use reasonable efforts to achieve ninety-nine percent (99%) Software availability in North America. The Software availability goal also excludes any time Customer requests the site be taken down for scheduled updates. Blockit does not and cannot control the flow of data to or from Blockit’s network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Customer’s connections to the Internet (or portions thereof). Although Blockit will use reasonable efforts to take actions it deems appropriate to remedy and avoid such events, Blockit cannot guarantee that such events will not occur. Accordingly, Blockit disclaims any and all liability resulting from or related to such events.
2. Maintenance. Blockit shall use commercially reasonable efforts to provide corrections to reported problems that (i) prevent the Software from conforming in material respects to its specifications, and (ii) are replicated and diagnosed by Blockit as defects in the Software (“Maintenance and Support Services”). Blockit shall use commercially reasonable efforts to begin working on a resolution to Customer’s written notice of reported problems within fourteen (14) days; provided, that corrections shall be prioritized in Blockit’s reasonable discretion. A response is not a guaranty of a solution to the reported problem. However, Blockit will keep Customer apprised of the resolution closure. Additional features and functions are not included as part of the maintenance and support services.
3. Exclusions. Blockit shall not be obligated to provide Maintenance and Support Services for any software other than the generally available Software delivered to Customer pursuant to this Agreement (such other software, collectively, the “Unsupported Code”). Any Blockit support services related to Unsupported Code shall be subject to execution of a mutually agreed upon assignment order issued under a professional services agreement.
4. Third Parties. Blockit shall have the right to use third parties, including employees of Blockit’s affiliates and subsidiaries (collectively, “Subcontractors”), in performance of Blockit’s obligations and services hereunder and, for purposes of this Section 4, all references to Blockit or its employees shall be deemed to include such Subcontractors.
Exhibit B: Business Associate Agreement
This Business Associate Agreement (this “BAA”) is entered into by and between Customer (“Covered Entity”), and Blockit Now, Inc., a Delaware corporation (“Business Associate”). Each of Covered Entity and Business Associate may be referred to herein, individually, as a “Party” and, collectively, as the “Parties.” Any capitalized term used herein but not otherwise defined herein shall have the meaning ascribed to it under that certain Service Agreement entered into by and between the Parties contemporaneously herewith.
WHEREAS, the Parties recognize and agree that either (i) Covered Entity is not currently a “covered entity” as defined in the Health Insurance Portability and Accountability Act of 1996 and as described in the Health Information Technology for Economic and Clinical Health Act (“HITECH”) provisions of the American Recovery and Reinvestment Act of 2009 (“ARRA”) and the regulations promulgated thereunder (collectively, “HIPAA”), but may in the future become one, or (ii) the relationship between Covered Entity and Business Associate, pursuant to which Business Associate provides certain services (the “Services”) for Covered Entity under the terms of that certain Service Agreement entered into by and between the Parties contemporaneously with this BAA, does not currently involve the creation, receipt, maintenance, or transmission of certain Protected Health Information, as defined in 45 CFR 160.103 and limited to the information created or received by Business Associate from or on behalf of Covered Entity (“PHI”), or otherwise is such that the relationship between the Parties is not a “business associate” relationship as regulated by HIPAA; and
WHEREAS, HIPAA requires that Covered Entity enter into written agreements with its business associates in order to regulate the use and disclosure of certain protected health information of Covered Entity; and
WHEREAS, Covered Entity and Business Associate agree to enter into this BAA under the terms and conditions set forth herein to meet the applicable requirements for such business relationships under HIPAA.
NOW THEREFORE, for and in consideration of these premises, the Parties’ other mutual covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are forever acknowledged and confessed, the Parties hereto acknowledge, covenant, and agree that, if and only to the extent that (i) Covered Entity is or becomes a “covered entity” under HIPAA and (ii) the Services involve the creation, receipt, maintenance, or transmission of PHI or otherwise create a “business associate” relationship under HIPAA, then the Parties will abide by the following provisions:
1. Obligations of Business Associate
1.1 Permitted Uses and Disclosures of PHI. Business Associate shall use and disclose any PHI it may receive from Covered Entity only to perform the Services and carry out the obligations of Business Associate under this BAA, and in accordance with applicable federal and state laws, including but not limited to HIPAA. Business Associate will only use or disclose the minimum necessary PHI and will abide by Covered Entity’s policies and procedures relative to minimum use. Business Associate may not use or disclose PHI in a manner that would violate HIPAA if done by Covered Entity, except as specifically set forth herein. Business Associate may also use or disclose PHI for the proper management and administration of the Business Associate, for data aggregation services related to the health care operations of Covered Entity, to de-identify PHI in strict compliance with HIPAA, or to carry out its legal responsibilities, but only to the extent any such disclosure is required by law or if (i) the Business Associate obtains reasonable assurances from the person or entity to whom the information is disclosed that it will be held confidentially and used or further disclosed only as required by law or for the purpose for which it was disclosed, and (ii) the person or entity agrees to notify the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached. To the extent Business Associate is to carry out any obligation of Covered Entity under Subpart E of 45 CFR Part 164, Business Associate shall comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligation. Business Associate shall not use or further disclose PHI other than permitted or required by this BAA or as otherwise required by law.
1.2 Safeguards. Business Associate shall implement and use appropriate administrative, physical and technical safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to reasonably and appropriately protect the confidentiality, integrity, and availability of the PHI and prevent the use or disclosure of PHI other than as set forth in this BAA, or as permitted or required by law.
1.3 Reporting Disclosures of PHI. In the event Business Associate, its agents, employees or contractors use or disclose PHI in violation of this BAA, Business Associate shall report such use or disclosure to Covered Entity as soon as Business Associate becomes aware of such violation, including the circumstances surrounding the use or disclosure and a description of the PHI inappropriately used or disclosed. Business Associate shall report to Covered Entity any Security Incident of which it becomes aware, provided that Business Associate shall only be required to report unsuccessful Security Incidents upon request by Covered Entity, and any such report may be in summary form generally describing the types and frequency of such unsuccessful Security Incidents. Business Associate agrees to notify Covered Entity in the event of any breach of unsecured PHI held by or under the control of Business Associate, including the identity of the affected individual(s) and all other relevant information, within three (3) business days of becoming aware of such breach. Unless the context of the relationship specifically requires otherwise, the parties disclaim any agency relationship between Covered Entity and Business Associate.
1.4 Mitigation of Harmful Effects. Business Associate shall establish procedures for mitigating harmful effects of any improper use or disclosure of PHI that Business Associate reports to Covered Entity.
1.5 Third Party Agreements. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), Business Associate shall require all of its subcontractors and agents that create, receive, maintain, transmit, use or have access to PHI under this BAA to agree in writing to adhere to the same or substantially similar restrictions, conditions and requirements applicable to the use or disclosure of such PHI as required herein, including without limitation any provisions specifically required of Business Associate Agreements by HIPAA.
1.6 Access to Information. Within ten (10) business days of a request by Covered Entity for access to PHI about an individual contained in a Designated Record Set (as defined in 45 C.F.R. 164.501) in Business Associate’s possession, Business Associate shall make available to Covered Entity such PHI for so long as such information is maintained in the Designated Record Set by Business Associate. In the event any individual requests access to his or her own PHI directly from Business Associate, Business Associate shall forward such request to Covered Entity upon receipt of the same. Business Associate shall reasonably cooperate with Covered Entity to provide an individual, at Covered Entity’s written direction, with access to the individual’s PHI in Business Associate’s possession within ten (10) business days of Business Associate’s receipt of written instructions for same from Covered Entity. Any denials of access to PHI requested shall be the responsibility of Covered Entity.
1.7 Amendment of PHI. Business Associate agrees to make PHI in a Designated Record Set available for amendment and to incorporate any appropriate amendments at the direction of and in the time and manner designated by Covered Entity. Business Associate further agrees to forward to Covered Entity any request for amendment of PHI made directly by an individual to Business Associate upon receipt of such request, and take no action on such request until directed by Covered Entity.
1.8 Accounting of Disclosures. Business Associate agrees to document disclosures of PHI and information related to such disclosures as would be required for Covered Entity to respond to a request by an individual for an accounting of disclosures of PHI in accordance with 45 CFR 164.528 and to provide Covered Entity with an accounting of such disclosures in the time and manner designated by Covered Entity. Business Associate further agrees to forward to Covered Entity any request for an accounting of disclosures of PHI made directly by an individual to Business Associate upon receipt of such request. To the extent Business Associate maintains PHI in an electronic health record, Business Associate agrees to account for all disclosures of such PHI upon the request of an individual for a period of at least three (3) years prior to such request (but no earlier than the effective date of this BAA), as required by HITECH; such accounting shall be directly to the individual if requested by Covered Entity.
1.9 Access to Books and Records. Business Associate agrees to make its internal practices, books, and records relating to the use and disclosure of PHI available to the Secretary of the Department of Health and Human Services for purposes of determining compliance with the requirements of HIPAA.
1.10 Obligations under ARRA. Business Associate acknowledges that it is subject to the security and data breach provisions of HIPAA and agrees to abide thereby. Business Associate also agrees to abide by all of the privacy provisions set forth in Title XIII, Subtitle D of ARRA, including without limitation restrictions on marketing and sales of PHI and requirements relating to limited data sets and minimum necessary disclosures.
2. Obligations of Covered Entity
2.1 Notice of Privacy Practices. Covered Entity agrees to provide Business Associate with a copy of Covered Entity’s “Notice of Privacy Practices,” required to be provided to individuals in accordance with 45 CFR 164.520, as well as any subsequent changes to such notice.
2.2 Changes to or Restrictions on Use or Disclosure of PHI. Covered Entity will provide Business Associate with any changes to, or revocation of, permission to use or disclose PHI if such changes affect Business Associate’s permitted or required uses or disclosures. Covered Entity will further notify Business Associate of any restriction to the use or disclosure of PHI agreed to by Covered Entity in accordance with the provisions of 45 CFR 164.522, and any restriction requested by an individual which Covered Entity is required to comply with in accordance with the provisions of HITECH.
2.3 Requested Uses or Disclosures of PHI. Covered Entity shall not request Business Associate to use or disclose PHI in any manner inconsistent with state or federal law.
3. Term and Termination
3.1 Term. This BAA shall be deemed effective on the Effective Date and shall continue in effect until all obligations of the Parties have been met, unless otherwise terminated under the terms and conditions set forth herein.
3.2 Termination for Cause. Upon Covered Entity’s knowledge of a material breach of this BAA by Business Associate, its agents or subcontractors, this BAA, any of the Blockit Agreements (including, without limitation, the Service Agreement), and any other underlying services agreements may be immediately terminated by Covered Entity, as provided under 45 CFR 164.504(e)(2)(iii). At its option, Covered Entity may choose to (i) provide Business Associate with written notice of the existence of a material breach of this BAA; and (ii) permit Business Associate to cure the material breach upon mutually agreeable terms. In the event Business Associate is afforded an opportunity and fails to cure the breach in accordance with such mutually agreeable terms, this BAA, any of the Blockit Agreements (including, without limitation, the Service Agreement), and any other underlying services agreements may be immediately terminated at the option of Covered Entity. In the event Covered Entity violates its obligations under HIPAA in a manner related to this BAA, Business Associate shall provide Covered Entity with notice of such breach; if Covered Entity does not cure such breach within a reasonable period of time, Business Associate may terminate this BAA, any of the Blockit Agreements (including, without limitation, the Service Agreement), and any other underlying services agreements.
3.3 Effect of Termination and Obligations of Business Associate Upon Termination. Upon termination of this BAA, Business Associate shall return or destroy (at the option of Covered Entity) all PHI created or received by Business Associate, its agents and subcontractors to the extent feasible, without retaining any copies of such PHI. If Business Associate and Covered Entity mutually agree that return or destruction of the PHI is not reasonably feasible, Business Associate agrees to extend the protections of PHI under this BAA and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible.
The obligations of Business Associate under this paragraph shall survive the termination of this BAA.
4. Miscellaneous Provisions
4.1 Definitions and Interpretation; Indemnification. All words used herein but not defined herein or in the Service Agreement shall have the meanings set out in HIPAA, and this BAA shall be interpreted in such a fashion as to cause the Parties to be in compliance with HIPAA. Notwithstanding any other provision of this BAA to the contrary, to the extent permitted by law, Covered Entity and Business Associate agree to indemnify, defend and hold harmless each other and each other’s respective employees, directors, officers, subcontractors, agents or other members of its workforce, each of the foregoing hereinafter referred to as “indemnified party,” against all actual and direct losses suffered by the indemnified party and all liability to third parties arising from or in connection with any breach of this BAA or of any warranty hereunder or from any negligence or wrongful acts or omissions, including failure to perform its obligations under HIPAA, by the indemnifying party or its employees, directors, officers, subcontractors, agents or other members of its workforce. Accordingly, on demand, the indemnifying party shall reimburse any indemnified party for any and all actual and direct losses, liabilities, lost profits, fines, penalties, costs or expenses (including reasonable attorneys’ fees) which may for any reason be imposed upon any indemnified party by reason of any suit, claim, action, proceeding or demand by any third party which results from the indemnifying party’s breach hereunder. The provisions of this paragraph shall survive the expiration or termination of this BAA for any reason.
4.2 Assignment. Neither Party shall have the right to assign its rights or obligations under this BAA without the prior written consent of the other Party, and any such attempted assignment shall be void.
4.3 Amendment. This BAA shall not be modified or amended except by a written document executed by each of the Parties, and such written modification or amendment shall be attached hereto.
4.4 Waiver of Provisions. Any waiver of any terms and conditions of this BAA must be in writing, and signed by both Business Associate and Covered Entity. The waiver of any of the terms and conditions of this BAA shall not be construed as a waiver of any other terms and conditions of the BAA.
4.5 Parties In Interest; No Third-Party Beneficiaries. Except as otherwise provided in this BAA, the terms and conditions of this BAA shall inure to the benefit of and be binding upon the respective heirs, legal representatives, successors and permitted assigns of the Parties. Neither this BAA nor any other agreement contemplated in this BAA shall be deemed to confer upon any person not a party to this BAA any rights or remedies contained in this BAA.
4.6 Governing Law. This BAA, the rights and obligations of the Parties hereto, and the entire relationship between the Parties relating hereto shall be governed by and construed and enforced in accordance with the substantive laws (but not the rules governing conflicts of laws) of the State of Texas and with HIPAA.
4.7 Notice. Whenever this BAA requires or permits any notice, request, or demand from one Party to another, the notice, request, or demand must be in writing to be effective and shall be deemed to be delivered and received (i) if personally delivered or if delivered by telex, telegram, facsimile or courier service, when actually received by the Party to whom notice is sent, or (ii) if delivered by mail (whether actually received or not), at the close of business on the third business day following the day when placed in the mail, postage prepaid, certified or registered, addressed to the appropriate Party, at the address of such Party set forth below (or at such other address as such Party may designate by written notice to the other Party in accordance herewith):
If to Covered Entity, all notices will be sent to the address provided by Customer or the address on file by Blockit Now, Inc.
If to Business Associate: Blockit Now, Inc.
Attn: Sean Workman
550 N Central Expy #577
McKinney, TX 75070
4.8 Authorization. The Parties executing this BAA hereby warrant that they have the authority to execute this BAA and that their execution of this BAA does not violate any bylaws, rules, or regulations applicable to them.
4.9 Counterparts. This BAA may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.